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EEOC Proposes to Collect Pay Data from Certain Employers

April 25, 2016

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EEOC Proposes to Collect Pay Data from Certain Employers

April 25, 2016

Authored by: Nancy Franco

The Equal Employment Opportunity Commission (“EEOC”) recently proposed a revision to the Employer Information Report (“EEO-1”) that would require certain employers to submit aggregate data on employee pay and hours worked.

Employers with 100 or more employees and federal contractors with 50-99 employees already are required to submit the EEO-1 to the EEOC by September 30 of each year.  The current version of the EEO-1 requires employers to report the number of individuals they employ by ten job categories, sex, race, and ethnicity. Under the new proposal, beginning with the September 30, 2017 report, private employers and federal contractors with 100 or more employees would also report the number of employees and the employees’ total W-2 earnings for the prior twelve month period within twelve designated pay bands.

For example, an employer would report that it employs 5 Latina women who are Senior Level Officials in the twelfth pay band

Certification of Compliance with Flammability Standards No Longer Required for “Inherently Safe” Adult Clothing

Until recently, federal law required many adult clothing manufacturers and importers to issue certificates of compliance with applicable flammability standards, even though certain fabrics had already been determined to meet such standards.

Effective March 25, 2016, however, the Consumer Product Safety Commission (“CPSC”) gave the industry a reprieve – a new policy eliminating the need for certificates of compliance for adult clothing made from certain fabrics. The relevant fabrics include plain surface fabrics weighing at least 2.6 ounces per square yard and all fabrics that are made from acrylic, modacrylic, nylon, olefin, polyester or wool. The policy is expected to save manufacturers roughly $250 million yearly in certificate preparation costs. Click here for more information.

Department of Labor Will Investigate Compliance with Distribution Rules for Defined Benefit Plans

Employers in the retail industry often experience significant employee turnover, and it can be difficult to keep track of former employees once they have moved on.  Thus, retailers should be aware that the Department of Labor (“DOL”) has recently implemented an initiative to investigate the manner in which large employers comply with the required minimum distribution rules for defined benefit plans.

The initiative is focused on the extent to which large employers have processes in place to (i) locate missing plan participants, (ii) inform deferred vested participants that a benefit is payable, and (iii) commence benefit payments in a timely fashion.  The minimum distribution rules generally require qualified plans to begin distributions no later than the April 1 following the calendar year in which a former employee reaches age 70½.  Since retail employers tend to face a particularly tough task in keeping track of former employees, those with defined benefit

California Prop. 65 Warning Requirement for BPA to Take Effect

April 14, 2016

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The California Proposition 65 warning requirement for Bisphenol-A (“BPA”) takes effect on May 11, 2016, and retailers, manufacturers, and distributors should act now to reduce potential liability.

BPA is used in a wide variety of plastic consumer products, including the epoxy lining in food and beverage cans and bottle lids, some reusable food and drink containers, CDs and DVDs, and electronics and sports equipment made from polycarbonate plastics.  California has not yet adopted a safe harbor level for exposure to BPA below which no warning is required, but recently proposed a safe harbor level of 3 micrograms per day for dermal BPA exposure from solid materials.  The safe harbor level will not be adopted prior to May 11, however, when the warning requirement takes effect.

In the meantime, California’s Office of Environmental Health Hazards Assessment (OEHHA) has proposed an emergency regulation to allow temporary use of a standard point-of-sale warning

Putative Class Action Lawsuit Filed against J. Brand Jeans over “Made in California, USA” Label

Plaintiffs in California continue to focus on labels. Recently, a putative class action lawsuit was filed against J Brand, Inc., the maker of designer J Brand jeans and other clothing. The complaint alleges that the label for J Brand jeans states they are “Made in California, USA,” but that more than 5% of the jeans consist of imported material. Specifically, the complaint alleges that the imported material used includes fabric, thread, buttons, subcomponents of the zipper assembly, and rivets.

The plaintiff’s claim against J Brand, Inc. is based on an alleged violation of California Business and Professions Code section 17533.7, which provides that it is unlawful to use “Made in U.S.A.,” or similar words if the product has been “entirely or substantially made, manufactured, or produced outside of the United States.”

There are two exceptions to the statute. First, a company may still use the “Made in U.S.A.” label if

Credit Card Data Breaches: Protecting Your Company from the Hidden Surprises

Debit and credit cards are now the primary form of retail payment. Many retailers may not realize, however, that by accepting credit cards, they expose themselves to the risk of a data security breach and significant potential costs and legal liabilities.

Retailers should consider the major sources of direct costs following a data breach. These costs always include the retaining of a PCI (payment card industry) certified forensic investigator as required by the PCI Council. Costs also typically include the retaining of a privileged forensic investigator (often by the retailer’s law firm or general counsel); the hiring of outside counsel; public relations and crisis management; and consumer notification including printing and mailing costs and protection services offered to consumers.

In addition to the direct costs following a data breach, retailers often face three forms of liability from third parties: payment card brand fees; regulatory costs arising from investigations from the

Payroll and HR Professionals Beware: Phishing Schemes are now Trying to Lure You

The IRS recently issued an alert regarding e-mail phishing schemes unveiled this tax season that are designed to trick HR and payroll professionals into providing sensitive, personal information about employees. Unlike prior scams, the e-mails are no longer just designed to trick taxpayers into thinking the IRS is attempting to contact them for personal information.

Check out our Bryan Cave Benefits alert for more information on how to avoid this dangerous “phishing” scheme.

Vermont joins four states in requiring paid sick leave for employees

April 5, 2016

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Vermont has passed new legislation guaranteeing paid sick leave for employees. Vermont joined four other states that already mandate paid sick leave – California, Connecticut, Massachusetts, and Oregon.

The law goes into effect as of January 2017 for employers with more than five employees. Employers with five or fewer employees will have until January 2018 to comply. Initially, the law will require that employers guarantee certain full time employees at least three paid sick days each year. As of January 2019, however, all employers affected by the law must guarantee at least five sick days for certain full time employees.

The law provides that an employee shall accrue not less than one hour of earned sick time for every 52 hours worked. An employer may require a waiting period of up to one year before a newly hired employee may use the accrued sick time. An employee may use the

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